[2018] KEHC 4889 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT KENYA AT MACHAKOS

HIGH COURT SUCCESSION CAUSE NO. 25 OF 2018

IN THE MATTER OF THE ESTATE OF PHILIP NTHENGE MUKONYO

DAVID MUTISO NTHENGE..........................CITOR

AND

1. RUTH NDUNGE NTHENGE

2. MARGARET WANZA

3. GRACE MWIKALI

4. BEATRICE MUINDU

5. JOSEPHINE MUTIO

6. SERAH MWELU

7. PRIMROSE NGII........................................CITEES

RULING

Introduction

1. By Summons dated 23rd May, 2018, the applicant herein, David Mutiso Nthenge, who is the Citor herein seeks four prayers. Relevant to this ruling is the prayer that pending the issuance of Grant of Letters of Administration and confirmation of Grant the Court permits the withdrawal of Kshs 100,000. 00 from the money held in Credit Bank, Machakos Branch Bank Account No. 0141019000033 in the name of Manthi Masika & Co. Advocates and Moses Odawa & Co. for payment of university fees and related expenses for the Applicant’s child who has been admitted to enrol in JKUAT University.

2. According to the applicant, this Court in its ruling of 28th day of March, 2018 in the related High Court Succession Cause No. 193 of 2002 (hereinafter referred to as “the Succession Cause”) ordered that the succession in respect of the deceased’s properties not comprised in the alleged will which include Land Parcel No. Machakos Town Block II/319 and Land Parcel No. Machakos Town Block II/318, to proceed as if they are intestate and that the rental collection in respect thereof to continue being banked in bank account in favour of the estate in the names of Manthi Masika & Co. Advocates and Moses Odawa & Co.

3. The applicant however deposed that his child had been admitted to JKUAT University on 27th August 2018 to study Bachelor of Human Resource Management and that he required the money to pay for the said university fees and expenses prior to reporting and enrolment date in order to secure her position at the University.

4. The applicant however averred that he was aged 80 years and sickly and unless this application is allowed he would suffer irreparably as his child will miss the academic year reporting date deadline of 27th August, 2018 whereas the Respondents who are his sisters who have refused to talk to him or cooperate with him since the death of their father will suffer no prejudice at all as they continue to receive and distribute in cash the bulk of the rental income from their father’s estate comprising of 2 prime commercial plots and 7 residential plots which combined rental amount to Kshs 600,000. 00 per month.

5. In response to the application, the Respondents who are also the Citees herein averred that the Citor was the Objector in the said Succession Cause where he was challenging the Will and Codicil in respect of the properties that their father willed to them on the basis that the Will and the Codicil were not valid though in this Citation he accepts the Will and the Codicil and wants to be shared the rent collected from the two properties but at the same time pursuing the appeal against the judgement in the said Succession Cause.

6. It was averred that on 28th March, 2018, the Court made a ruling that the Will and the Codicil were validly made by the father and that the probate should proceed in accordance with the provisions of the Will and Codicil. However, upon the delivery of the said ruling the Citor appealed against the said decision.

7. It was deposed that according to the Will and Codicil, there is no property of e Estate that was omitted hence the Will and the Codicil ought to be interpreted by the Court before the Citation is heard and the Court gives directions as to what property is to be distributed in accordance with the Will and the Codicil and which ones through intestacy.

8. According to the Citees, land parcel no. Machakos Town/ Block II/319 was registered in their names, as daughters of the deceased, in accordance with the wishes expressed by the Testator during his lifetime through HCCC No. 346 of 2001 – In the Matter of the Estate of Luisa Mutava Kioko but whose lease expired before the death of the deceased hence the same property cannot be a subject of this Citation as the same was not registered in the names of the deceased at the time of his death. With respect to land parcel no. Machakos Town/ Block II/318, the Citees averred that the property was entrusted to the Executors of the Will and Codicil to distribute at their discretion.

9. It was therefore the Citees’ position that there is no property available through intestate process and the Citation should be dismissed.

10. The Respondents contended that the Citor cannot object to the ruling by Nyamweya, J of 28th March, 2018 appeal against the same, apply for its stay and at the same time rely on it in seeking the orders herein. It was therefore their position that this Citation ought to be stayed until the Citor exhausts the appellate process or withdraws the appeal. The Citees insisted that the Citor cannot obtain letters of administration without their consent which he had not sought and they were unwilling to co-operate with the Citor before the Appeal the Citor intends to file is heard and determined unless the appeal is withdrawn. They reiterated that until he Court interprets the provisions of the Will and the Codicil, no citation can be made against them as they are willing to apply for letters of administration if t Court holds that there are properties not in the Will and Codicil that ought to be dealt with through intestate process. They therefore prayed that the Citation be dismissed or stayed pending either the said interpretation or the exhaustion of the appellate process.

11. It was submitted on behalf of the Citor that since the two properties mentioned hereinabove are not mentioned in the Will, the appeal against the Will is no bar to the court considering the Application and directing that as long as there is no residuary bequest there is no basis for denying the Applicant’s child access to the funds to pay school fees. In support of the submissions, the Citor relied on In the Matter of the Estate of Kimeli Bett Arap Tuei (deceased) [2009] eKLR, In the Matter of the Estate of A M K – Deceased [2015] eKLR and Esther Wangari Kingori vs. Elias Njoroge Ndungu & Another [2005] eKLR.

12. On behalf of the Respondent, it was submitted that since they have entered Appearance and made objection to the Applicant David Mutiso insisting to apply to be given letters of Administration alone in respect of the two parcels of land alleged to belong to the Deceased and not covered by the Codicil that the objector refers to the Citation the Application has no merits.

13. The Citees reiterated the contents of their replying affidavit and submitted that the Applicant’s Application for Citation and for a grand child of the Deceased to be given Kshs. 100,000/= as university fees cannot be heard before the Applicant withdraws the intended Appeal or the Appeal is heard and determined hence these Applications are prematurely filed.

14. It was their submission that the Applicant cannot be saying in the Citation that he needs University fees for the Grand Child of the Deceased to be paid from the Deceased Estate since the Court said the Estate should be administered in accordance with the provisions of the Will and the Codicil and this is the same Judgment he is appealing against and at the same time applying to stay the same Judgment he wants to rely upon to get Kshs. 100,000/= for University fees for his child; whatever his health condition might be.

15. It was submitted that the Applicant is aware that one of the properties known as Machakos Town Block 11/319 was never the property of the Deceased and this was clearly demonstrated by the Judge – James Makau who was at the time of doing the will and the Codicil acting for the Deceased and the Judge demonstrated in Court who was the owner of this parcel of land. This same position is shown in HCCSUCC Cause No. 346 of 2001 – The Estate of Luisa Mutave Kioko coming for hearing on 16/7/2018. It was further submitted that the Applicant is aware that the other parcel of land being Machakos Town Block 11/318 was in the Codicil and was entrusted to the Executors to distribute in accordance with the Deceased wishes where it state as follows:-

“I GIVE DEVISE AND BEQUATH all property being immovable whatsoever and wheresoever not otherwise disposedby my will of 21st March 1996 or any Codicil hereto unto my Trustees named in my will of 21st March 1996 upon Trust to distribute or dispose of the said properties herein below”

16. According to the Citees, although, the parcel of land known as Machakos Town 11/318 was not specifically mentioned and was acquired after the Deceased had done the Codicil, it is clear nothing was given to the Applicant in this parcel of land and it is upon the Executors to distribute the Estate not only to the Applicant but the other beneficiaries. It was their position that the Estate cannot be distributed intestacy since, the Deceased had left a will and codicil that disposed his properties. In their view, the Applicant cannot institute the Citation since he was also provided for in the Will.

17. It was contended that even if the Citor had not made an Appeal or had not filed an Application for the stay of the Judgment of Nyamweya, J dated 28th March, 2018 the Applicant will not get money to educate his children without the Consent of the other beneficiaries since the Grand child was not a Dependant of the Deceased at the time of the death and no evidence has been led to this effect; the Grand Child is not a beneficiary of the Deceased Estate and is not entitled to a share of the Deceased property; the Grand Child was never mentioned in the will or the Codicil; there cannot be partial distribution of the Estate of the Deceased in a citation and the Application for provision of Kshs. 100,000/= is misconceived; and it is the duty of the Applicant to cater for his children by paying School/university fees. In this regard the Citees relied on the decision of Lenaola, J (as he then was) in HCC SUCC Cause No. 1298 of 2011 – In the Matter of the Estate of Gerishon Kamau Kirima (Deceased).

18. In the Citees’ submissions, the Applicant has no capacity even to make the Application for a provision for Kshs. 100,000/= to be taken out of the Estate of the Deceased at the citation stage and even before he gets letters of Administration. It was their case that the order made by Nyamweya, J to have the rent collected for the two plots to be kept by the Advocates on record was to remain in force until the provisions of the Will and Codicil were interpreted by the Court and that they intend to apply to the Court for interpretation of the will and the Codicil and in relation to whether the two properties were the Deceased’s and whether the trustees should distribute the Estate with or without the involvement of the applicant.

19. It was the Citees’ position that none of the cases cited by the Citor dealt with a Grand Child of the Deceased but were dealing with a situation of the Minor children of the Deceased who were dependants of the Deceased and the Applicants had been given a grant of letters of Administration as at the time the Application for payment of school fees for the children of the Deceased were made.

20. It was reiterated that the Application to be provided with Kshs. 100,000/= for University fees cannot succeed and the Citation cannot be entertained now when the Citor is appealing against the Judgment of Nyamweya, J dated 28th March, 2018.

Determination

21. I have considered the application, the affidavits both in support of and in opposition to the application.

22. The first issue for determination is whether in Citation proceedings, the Court may make provision for dependants. Rule 22(1) of the Probate and Administration Rules (hereinafter referred to as “the Rules”) provides that:

A citation may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right thereto.

23. A citation, it was held in In the Estate of Sheikh Fazal Ilahi [1957] EA 697 in which the Court relied on Henderson on Testamentary Succession (4th Edn), is an instrument issued by the court, citing persons to come in and show cause why a grant should not issue to a particular person. It was therefore held in Maamun Bin Rashid Bin Salim El-Ruhmy vs. Haider Mohamed Bin Rashid El-Basamy [1963] EA 438 that:

“Where a person claiming to be an heir (or the heir of an heir) of a deceased person applies for a grant of administration, citations should not be issued to other heirs whose existence is disclosed in the petition having an equal right as a matter of course but only when for some special reason the court sees fit to make such an order. The object of a non-contentious citation is to call upon a person who has a superior right to a grant to take the grant. Thus any person who is interested in having an estate administered may apply for a grant of representation, but if there are persons who have a superior right to obtain the grant, he must cite such persons calling upon them to apply for the grant. If the person cited fails to apply for a grant or renounce their right to it, the grant may, subject to the usual conditions, be given to the citor. It follows that, save in cases where the court thinks it necessary to do so; non-contentious citations should not be issued unless the petition discloses that the person seeking the grant has a lesser right than some other person who has failed to take the necessary steps to obtain it… If on the other hand the person cited concedes that the person who has applied has a right to the grant but contends that he has a superior right, then, the proper course for him to adopt (after he has been served with citation) is to enter appearance to the citation and himself apply for a grant to be made to him if he so wishes. If the person cited enters appearance but takes no further step, the citor may apply on summons for an order that the person cited to take the grant within a stated time and in the event of the latter neglecting to do so, the grant will be ordered to be made to the citor…The only issue before the court in a cause brought as a result of a caveat being entered is whether or not the person who has applied for the grant is entitled to it and there is no issue as to whether he or some other person has a better right to the grant.”[Emphasis supplied].

24. It was therefore held by Kneller, J (as he then was) in Kiboko vs. Assistant Land Registrar and Others [1973] EA 290 that:

“Citations need not be ordered to issue to all persons shown as heirs in the petition of the deceased for a grant of letters of administration of the estate. They need not be ordered as a matter of course to issue for heirs shown in the petition to have an equal right. They should go forth to anyone shown to have a superior right to take up the grant or for any other special reason.”

25. It is therefore clear that unless the Court thinks otherwise, the Citor must be a person who is himself entitled to a grant, in the event that a person with a superior right fails to take up the grant or for any other special reason. Where two or more persons have equal rights to grant of representation, there is no necessity for a citation to be made. In those circumstances, one of them is at liberty to apply for grant and the Court may in its discretion join the other persons if it deems fit.

26. Section 66 of the Law of Succession Act, Cap 160, Laws of Kenya provides that:

When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—

(a) surviving spouse or spouses, with or without association of other beneficiaries;

(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;

27. Under Part V of the Act, the children of a deceased person rank equally. In this case the Citor and Citees are brother and sisters respectively. Accordingly, there is no superior right to a grant as between the two camps. Based on the law and authorities, it is therefore clear that there is no provision for seeking provision for dependants in a citation which is a procedure strictly meant for determination of the issue whether or not the Citor ought to be permitted to apply for grant of letters in light of those who rank in priority to him (the Citor) unwilling to do so.

28. As regards the Citees’ view that the Citation is premature, Nyamweya, J in her decision of 28th March, 2018 found that:

“…there may have been properties of the Deceased that were either not included in the Will and Codicil, or were acquired after such Will and Codicil had been executed. It must in this respect be emphasised that the grant of probate will only be made with respect to the property that the Will and Codicil provides, and where the Will or Codicil did not dispose of all the Deceased’s properties, then the Petitioners and Objectors will have to proceed by way of intestacy with respect to any outstanding properties by way of a separate application or proceedings.”

29. Contrary to the position adopted by the Citees, I do not understand the Learned Judge to have been saying that before an application for grant of letters is made, the Court must interpret the Will and the Codicil. Rather, it was left to the Petitioners and Objectors to proceed by way of intestacy with respect to any properties which in their view were outstanding by way of a separate application or proceedings. Therefore if the Citor herein believes that there are some properties which are not covered by the Will and Codicil, nothing bars him from proceeding in the manner proposed by the Court. The mere fact that he has appealed against the finding by the Court as to the validity of the Will and Codicil in respect of the properties the subject thereof does not bar him from proceeding in respect of those properties that did not form the subject of the Probate.

30. In the premises I find that the application for withdrawal of Kshs 100,000. 00 from the money held in Credit Bank, Machakos Branch Bank Account No. 0141019000033 in the name of Manthi Masika & Co. Advocates and Moses Odawa & Co. for payment of university fees and related expenses for the Applicant’s child who has been admitted to enrol in JKUAT University cannot be granted in these proceedings. I also agree with the decision of Lenaola, J (as he then was) in HCC SUCC Cause No. 1298 of 2011 – In the Matter of the Estate of Gerishon Kamau Kirima (Deceased) where the Judge at the end of the Ruling on 13th November, 2015 held as follows: -

“24. It is also uncontroverted that Mr. Wanjau’s children are neither the beneficiaries of the Estate of G.K Kirima nor were they Dependants of the Deceased. I am therefore of the view that Mr. Wanjau is only entitled to the payments that were consented upon by all the beneficiaries and the interests of justice cannot be served by partial distribution of the Estate to one beneficiary whatever his circumstances, unless the beneficiaries consent, as they have previously done, to such partial distribution”

31. As regards the Citation, it is my view that the proceedings were unnecessary in light of the fact that the Citors and the Citees are at par when it comes to the right to apply for letters of administration.

32. Consequently both the application and Citation fail and are dismissed but with no order as to costs.

33. It is so ordered.

Read, signed and delivered in open Court at Machakos this 6th day of August, 2018.

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Masika for the Citee

CA Geoffrey